Citation Nr: 1024071
Decision Date: 06/28/10 Archive Date: 07/08/10
DOCKET NO. 06-15 817 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila,
the Republic of the Philippines
THE ISSUES
1. Entitlement to service connection for memory loss, to
include as due to an undiagnosed illness.
2. Entitlement to service connection for diffuse joint
pains, claimed as fibromyalgia, to include as due to an
undiagnosed illness.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
L. Cramp, Counsel
INTRODUCTION
Appellant (the Veteran) had active service from February 1983
to February 1986, and from April 1987 to April 2004.
This appeal comes before the Board of Veterans' Appeals
(Board) from a September 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, the Republic of the Philippines.
In December 2008, the Board remanded this appeal for
additional evidentiary development. It has since been
returned to the Board for further appellate action.
The Board observes that, in addition to remanding the claims
listed above, in December 2008, it also granted a claim for
service connection for a disability manifested by fatigue,
which was on appeal at that time. The Board's decision with
respect to that claim is final. See 38 C.F.R. § 20.1100
(2009).
FINDINGS OF FACT
1. The Veteran has memory loss, which is a symptom of his
service-connected systemic lupus erythematosus.
2. The Veteran has diffuse joint pains, which are symptoms
of his service-connected systemic lupus erythematosus.
CONCLUSIONS OF LAW
1. Memory loss is proximately due to or the result of
service-connected systemic lupus erythematosus. 38 U.S.C.A.
§ 1110 (West 2002); 38 C.F.R. § 3.310(a) (2009).
2. Diffuse joint pains are proximately due to or the result
of service-connected systemic lupus erythematosus.
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310(a) (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002 & Supp. 2009)) redefined VA's duty to assist the
Veteran in the development of a claim. VA regulations
regarding the VCAA were codified as amended at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).
However, as the Board is granting the claims on appeal here,
the claims are substantiated, and there are no further VCAA
duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001);
see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to
provide assistance "if no reasonable possibility exists that
such assistance would aid in substantiating the claim");
VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and
duty to assist provisions of the VCAA do not apply to claims
that could not be substantiated through such notice and
assistance).
II. Analysis
Veterans are entitled to compensation from the Department of
Veterans Affairs if they develop a disability "resulting from
personal injury suffered or disease contracted in line of
duty, or for aggravation of a preexisting injury suffered or
disease contracted in line of duty." 38 U.S.C. § 1110. To
establish a right to compensation for a present disability, a
veteran must show: "(1) the existence of a present
disability; (2) in-service incurrence or aggravation of a
disease or injury; and (3) a causal relationship between the
present disability and the disease or injury incurred or
aggravated during service"-the so-called "nexus" requirement.
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Holton v. Shinseki, 557 F.3d 1362 (2009). Service connection
may also be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d) (2009).
Under 38 C.F.R. § 3.310(a), service connection may be granted
for disability that is proximately due to or the result of a
service-connected disease or injury. That regulation permits
service connection not only for disability caused by service-
connected disability, but for the degree of disability
resulting from aggravation of a nonservice-connected
disability by a service-connected disability. See also Allen
v. Brown, 7 Vet. App. 439, 448 (1995).
Under the regulation in effect at the time the Veteran filed
his claim, service connection may be granted for a disability
that is proximately due to or the result of a service-
connected disease or injury. 38 C.F.R. § 3.310(a) (as in
effect prior to October 10, 2006). That regulation was
interpreted to permit service connection not only for
disability caused by service-connected disability, but for
the degree of disability resulting from aggravation to a
nonservice-connected disability by a service-connected
disability. Allen, 7 Vet. App. at 448.
The Board notes that the Veteran has sought service
connection for disability manifested by memory loss and
multiple joint pains affecting the shoulders hips, elbows,
and knees, on the basis that they are qualifying chronic
disabilities related to his service in the Persian Gulf.
However, as service connection is warranted on a secondary
basis, as symptoms of his service-connected lupus
erythematosus, the Board will not address the Persian Gulf
provisions.
It is uncontested that service connection is in effect for
systemic lupus erythematosus, effective May 1, 2004. All
that remains is to establish by competent and credible
evidence, that the symptoms claimed are associated with the
service-connected lupus erythematosus.
Regarding joint pains, the Veteran was afforded a VA
examination in September 2009. The examiner found that the
Veteran does not have fibromyalgia, but found that the
Veteran does have fatigue and multiple joint pains that have
lasted more than 3 months. He concluded that a definite
diagnosis of fibromyalgia should only be made when no other
medical disease can explain the symptoms. In this case, the
Veteran's symptoms were found to be directly attributable to
systemic lupus erythematosus. The problems associated with
this diagnosis were found to include decreased mobility,
problems with lifting and carrying, lack of stamina, weakness
or fatigue, as well as decreased strength in the upper and
lower extremities.
Regarding memory loss, the Veteran was also afforded a VA
mental disorders examination in July 2009. The examiner
found that the Veteran has "perceived memory loss" that can
be attributed to his systemic lupus erythematosus. The
rationale for this opinion was that lupus is a systemic
autoimmune disease, and can bring about symptoms relating to
the nervous system, and even though most medical research has
indicated that it can bring about depression and memory
lapses only in the late stages, we can still state that it is
as likely as not that the main cause of the Veteran's memory
lapses and depression is the systemic lupus erythematosus.
Other evidence is consistent with the July 2009 report. In-
service psychiatric evaluations done in September 2002 and
August 2003 reveal some memory impairment. While those
reports also discuss cultural factors, specifically, the
Veteran's use of English as a second language, both reports
clearly acknowledge a diagnosis of depression that is
associated with lupus, and for which the Veteran is also
service-connected. The rating schedule for mental disorders,
including depression, lists memory impairment as symptomatic
of such mental disorders. While there appears to be some
uncertainty in the medical evidence as to the extent of
memory impairment, the current severity of memory loss is not
a matter before the Board. The July 2009 examiner
acknowledged intermittent memory loss. Also, a June 2003 QTC
consultation shows a finding of poor recent memory, with
intact remote memory. An August 2002 consultation includes a
finding of recent short-term memory loss. An undated in-
service report of medical examination (calculated to be in
1997 by date of birth and age at the time of examination)
lists a finding of memory loss. Other in-service records
also show notations of memory loss. Moreover, the Veteran is
competent to describe his perception of memory loss. As
such, the Board concludes that current memory loss of some
degree is shown.
Regarding etiology, there is no medical opinion that
contradicts those of the July 2009 and September 2009 VA
examiners. As such, the Board concludes that the evidence
supports attribution of current memory loss and multiple
joint pains to a service-connected disability.
ORDER
Service connection for memory loss associated with service-
connected lupus erythematosus is granted.
Service connection for diffuse joint pains associated with
service-connected lupus erythematosus is granted.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs